The Voting Rights Act has been a tool for the federal government to protect minority voters. (AP Photo/Matt Rourke.)

History will repeat itself in the chambers of the Supreme Court this week. The very state where the fight for voting rights reached its critical peak nearly 50 years ago is once again at the center of the dispute over democracy in America. But oddly, the political and legal odds may now be tilting away from civil rights and back toward an era in which the federal government had limited power to protect voters of color in the South from the machinations of local leaders.

The Supreme Court will hear arguments on Wednesday from an Alabama county that is challenging the constitutionality of Section 5 of the Voting Rights Act. That section protects voters of color in sixteen states (some fully covered, some partially), many of which have long brutal histories of denying black Americans their voting rights. It does this by making covered jurisdictions “preclear” election law changes with the federal government before implementation.

Shelby County claims Section 5 is unconstitutional because it treats covered jurisdictions, which hold 25 percent of the nation’s population, differently than the rest of the nation. The Supreme Court must decide whether to continue holding Section 5 jurisdictions, most of which are in the Deep South, under the watch of federal officials, or to strike the section so that all states are treated the same, whether legacies of oppressive voter policies exist or not.

The Voting Rights Act would be held together by Section 2, which mostly allows lawsuits after an offending law has already been passed, and too often after damage is already done. Pursuing such reactionary litigation routinely would stretch the Justice Department and civil rights groups beyond capacity. Remember all the court challenges before the November 2012 election? Imagine that on crack.

A brief history on how Section 5 became Section 5 is necessary to illustrate its imperative. The debate that will happen in the Supreme Court this week is not new. Rather, it’s best understood as an extension of a legal tug of war between the federal government and Southern states that began just six months after the Voting Rights Act became law.

A History of the Voting Debate

In the summer of 1965, Congress was mulling legislation that would prevent the kind of bloody atrocities the world had witnessed on TV—sheriffs billyclubbing, firehosing and shooting black people who were trying to vote in the Southern states. The Voting Rights Act was drafted at President Lyndon B. Johnson’s request and in response to the demands of civil rights activists not only throughout the South, but increasingly across the nation.

Within that legislation Section 5 was created so that states that had employed ever-shifting tricks like literacy tests and poll taxes to suppress black votes would not only have to cease these practices, but also would have to run any future ideas past the US Justice Department or a federal court in Washington, DC. Many Southern judges and courts could not be trusted.

To ensure they had the right culprits, Congress created a formula that would “trigger” which states would be covered. That formula was based on voter participation—if less than 50 percent of African-Americans in a political jurisdiction were registered by 1964, or if less than 50 percent had voted in that year’s presidential elections, then the area deserved coverage.

The trigger formula and Section 5’s preclearance provision were huge sticking points from the beginning and almost stopped the Voting Rights Act from becoming law. Southern states, most of which failed the trigger test, didn’t like being singled out, and even President Johnson thought it was too punishing.

Southern jurisdictions legally challenged the Voting Rights Act immediately after Johnson signed it into law. The Supreme Court first reviewed it in January 1966, less than six months after it took effect. South Carolina, which was completely covered by Section 5, argued that the federal government violated states’ rights by denying the state’s literacy test policies. The court ruled 8-1 that the Fifteenth Amendment gave Congress “full remedial powers” to prevent racial discrimination and that the Voting Rights Act was a “legitimate response” to an “insidious and pervasive evil.”

The Voting Rights Act went before the court again that year, this time leading the court to confirm Congress’ broad authority in enforcing Section 5. In 1968, it went before the High Court once more, in Allan v. State Board of Elections, when Mississippi and Virginia (both covered) argued that Congress hadn’t meant to direct the federal government to review all elections law changes in covered jurisdictions. Supreme Court Chief Justice Earl Warren kindly disabused them, saying, “The Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.”

The “which have the effect” phrase is important because it established that racist intentions weren’t required to prove a law was discriminatory. If a law merely had the effect of denying black people their votes, then it couldn’t fly.

Section 5 would be tried consistently over the next few decades—and would also face challenges in Congress. When the Voting Rights Act was up for renewal in 1970, Attorney General John Mitchell tried to weaken it by stripping out Section 5. Instead, it was expanded, and the Section 5 coverage formula was updated to include states with poor voter participation before the 1968 elections. Also, the franchise was expanded by dropping the voting age to 18.

Five years later, Section 5 was on the chopping block again when Congress began reauthorizing the law. By that point, civil rights activists were growing uneasy about its long-term security, especially as some Democrats wanted to try to expand its coverage again.

Representative Barbara Jordan of Texas, the first black woman elected to Congress from the South since Reconstruction, led a strong congressional push for its reauthorization, desiring a broadening of the law so that states that discriminated against non-English-speaking citizens would be covered. This was a courageous stance, especially when there was still a conservative contingency that wanted Section 5 dismantled.

Some civil rights advocates thought it might be too liberal of an expanse, and that tinkering with the coverage formula might lead to its failing. Aaron Henry of the NAACP, himself no slouch in the voting rights arena, testified before the House Judiciary Committee that he didn’t want “to amend the Act to perfection and then lose the whole thing.”

Congress approved it for seven more years and with Jordan’s wider coverage formula, which now protected Latino and Native American voters. Also, the trigger formula was updated so that poor voter participation before 1972 would add jurisdictions to the Section 5 mix. This led to Texas’ blanket coverage—and would make the state Section 5’s top nemesis in the decades to come. Texas is arguably where the legal history of voting rights begins, with the 1944 case Smith v. Allwright, argued by then–NAACP attorney Thurgood Marshall who called it his most important case.

Forty years later, though, voting rights almost was turned back to the pre–Smith v. Allwright era. In 1982, President Ronald Reagan determined Section 5 a threat to his political philosophies on states rights and deregulation. A young lawyer in the Reagan Justice Department was crusading against the Voting Rights Act following the lead of the administration’s civil rights attorney William Bradford Reynolds. That young lawyer was John Roberts, who today is the chief justice of the Supreme Court and will preside over this week’s hearing on Section 5.

Roberts was part of an administration that was so clueless, if not hostile, about the Voting Rights Act’s remedial purpose that the chief litigator of the Justice Department’s Civil Rights Division, Robert Plotkin, resigned in disgust, writing in The New York Times:

“This Administration sees civil rights laws as imposing unnecessary regulatory and economic burdens on society, and would like nothing better than ultimately to replace today’s tough laws with toothless ‘tigers.’”

The law was eventually renewed, helped along by a robust defense effort led by the Leadership Conference on Civil Rights, with Section 5 preserved for the next twenty-five years. That brought it up for reconsideration in 2006, when civil rights advocates produced a 15,000-page report showing that voting rights violations—both the subtle, and the obvious—continued, and specifically in the Southern states covered by Section 5. It was renewed for another quarter century.

But the trigger formula was not updated, nor had it been in the 1982 renewal. And that formula is at the core of the Supreme Court debate this week.

Does It Need Fixing?

To be clear, conservatives, and the Southern states, are hoping to do what they’ve been trying to do since the beginning: kill Section 5. In this case, Shelby County v. Holder, they are banking on Congress’ failure to update the coverage formula to abet them, arguing that the current voting climate necessitates a new or different remedy than what Section 5 offers.

They point out that states not covered by Section 5—like Pennsylvania and Wisconsin—have passed questionable voting laws without scrutiny. For this same reason, many voting rights advocates would like to see Section 5 expanded yet again, which would require a modification of the coverage formula.

But some constitutional scholars believe that the Voting Rights Act is set up to do exactly what it says it will do, in the places it says it will do it. Writes University of Michigan law professor Ellen D. Katz:

The issue presented in Shelby County v. Holder is not whether the Justices think Alabama is worse than Ohio, or even whether Congress might permissibly conclude that it is. Instead, Shelby County presents a different question: whether Congress has the power to extend a remedial regime that everyone agrees it lawfully adopted based on its conclusion that the regime continues to do critical work in the places where it operates. That conclusion should not be suspect, much less invalid, simply because problems have since developed in other jurisdictions that Congress might also appropriately regulate.

In other words let it do what it do, especially since it’s been doing it so effectively.

Katz conducted an extensive study of Voting Rights Act violations under Section 2, the provision that provides for after-the-fact voting rights complaints and covers the entire nation. She found that the jurisdictions covered by Section 5 were more than five-and-a-half times as likely to be sued for violations than non-covered jurisdictions. Of the total Section 2 cases that ended favorably for people of color—whether through court ruling or settlement—28.5 of those occurred in covered jurisdictions for every one in a non-covered. That means voting rights violations are in fact occurring much more frequently in jurisdictions covered by Section 5. It’s targeting the right areas.

But the case before the court is specifically about whether Congress overstepped its authority by reauthorizing the Voting Rights Act in 2006 without updating the coverage formula. The NAACP Legal Defense Fund, which will lead arguments in Shelby County v. Holder, argues on its website:

It is constitutionally permissible for Congress to focus attention on areas where discrimination in voting is persistent and adaptive; a law does not become unconstitutional simply because it does not solve every instance of discrimination—particularly when that law’s demonstrated track record shows that it does solve many such instances, and in the places with the most stubbornly persistent voting discrimination.

Attorney Debo Adegbile, who will help defend the Voting Rights Act in Shelby, told reporters last week that at root Section 5 is about the “minority inclusion principle”—making sure that the voices of people of color aren’t muted or erased in the election process. He said that the state of Alabama is perhaps unfit to challenge Section 5 due to its own “unbroken chain of repetitive discrimination” and violations, stretching from the passage of the law to the present. Shelby County’s city of Calera was just blocked in 2008 for its redistricting plan, which eliminated the only majority-black district and erased the city’s only black representation on city council.

Calera’s black district erasure was just the visible tip. In the Justice Department’s objection letter, it reminded Calera that the town failed to submit election law changes regarding 177 annexed residential divisions, as mandated by Section 5, for the previous thirteen years. Further, a geographer said he could help Calera meet its Section 5 obligations to prevent black vote dilution, “but the city council expressed no interest.”

“It’s not about the elected official,” Adegbile told reporters, “It’s about the people having a choice.”

Calera took away that choice so the county it rests in, Shelby, has “unclean hands” that don’t deserve a favorable remedy from the Supreme Court.

Congress’s 2006 Voting Rights Act authorization was no one-night affair. They debated and investigated the issue for nine months before passing it with a bipartisan consensus that would be unthinkable today. They even tweaked Section 5 to make sure its impact would be more equitably distributed by modifying provisions for bailing covered jurisdictions out of oversight, and adding a provision that allows for non-covered jurisdictions to be added in.

But the court isn’t supposed to weigh whether the legislation is perfect enough or not. NAACP Legal Defense Fund president Sherrily Ifill told reporters, “If you and I were going to create a process for protecting minority voters, we might have done it differently. If Justice [Antonin] Scalia created one he might do it differently. But that’s not the question before the court.”

The question, said Ifill, is whether Congress had the authority to do the 2006 reauthorization and did it “go through a rational process” to arrive at its conclusion.

“Ultimately, this case is about what will happen in thousands of cities, towns, villages and districts where minority voters continue to struggle to have their voices heard,” said Ifill. “It’s really about the strength of our democracy.”

—Brentin Mock

On a more optimistic note, legistlation in Virgina would allow more to vote by reducing ID requirements to a passport or driver's license, Voting Rights Watch reports.

Earlier this week, the Virginia House of Delegates passed a photo voter ID law that narrows the list of identification voters are required to show on Election Day to vote. The bill, which now sits before Gov. Bob McDonnell to sign or veto, would allow only a driver’s license or US passport to vote. Without either of those, a voter would have to file a provisional ballot, and then bring the required photo ID to the election board by the Friday after Election Day.

If McDonnell signs it, it wouldn’t go into effect until 2014—when the midterm congressional elections are held—but it would have to be approved by the federal government first. Since Virginia is a covered jurisdiction under the Voting Rights Act’s Section 5, any election law they make has to be pre-cleared by the US Justice Department or the US District Court in Washington, DC.

Virginia passed a voter ID bill last year that was pre-cleared by the Justice Department. But that law allowed for non-photo ID forms to be used, like a paycheck or utility bill. Also, Governor McDonnell pledged to send a state-issued voter ID card to everyone in the state who needed one.

As he determines whether to sign this more restrictive photo voter ID law, he may want to consider that Virginia apparently is close to bailing out from Voting Rights Act Section 5 supervision.

In a briefing this morning hosted by the NAACP Legal Defense and Educational Fund, attorney Debo Adegbile told reporters that Virginia is “very close,” probably “within a year” of being “completely bailed out” from Section 5. In that case, the legislature will not need to pre-clear any election laws with the federal government because they proved they had no Voting Rights Act violations for the previous ten years, a stipulation for bail outs.

However, if Governor McDonnell signs this law, and then the Justice Department rejects it due to any discriminatory intent or effect found in the law, then the Section 5 clock starts over, and they will continue to be subjected to federal supervision. Voting rights advocates estimate that as many as 870,000 Virginians lack the proper ID or the documents needed for voting purposes under such law.

Adegbile will be one of the attorneys arguing on behalf of the Voting Rights Act next week as it is reviewed before the US Supreme Court. Governor McDonnell should consider if he wants to make Virginia an example for Adegbile to use in that proceeding.

People wait in line on the fourth day of early voting in North Miami in 2012. (AP Photo/Alan Diaz.)

Yesterday, Florida Secretary of State Ken Detzner released his long-awaited report on how the state’s elections system can be improved. He spent a month on a fact-finding mission, talking with county elections supervisors and other concerned constituents to produce this list of recommendations on “increased accessibility & efficiency in Florida elections.” But the only thing Detzner seemed to learn from the supervisors was how to throw them under the bus. The state secretary focuses mostly on the problem of long lines—Florida voters waited an average of forty-five minutes, the longest time of any state—and he goes out of his way to blame this on the county election officials.

There’s a lot to unpack about long lines, but before doing that, let me list all of the problems Detzner’s report does not address:

There is no mention of felony disenfranchisement at all, despite the work of the Florida Rights Restoration Coalition advocating for automatic voting rights restoration and Governor Rick Scott’s dialing back of progress made on this issue by his predecessor Governor Charlie Crist. Detzner fails to even mention the problem of confusing and trapping the formerly incarcerated with conflicting information about their voter eligibility.

No acknowledgement of the “souls to the polls” campaign, where community organizers mobilize black churches to increase voter turnout in mostly marginalized communities. The report backhandedly refers to early voting on the Sunday before Election Day as a “regionally popular voting” day that most elections supervisors would rather do without. But there’s no mention of race and how it helps black voters despite a federal judge citing those reasons for why Florida could not ban it.

Nothing on purging. Florida spent the better part of last year fighting for the right to purge eligible voters from rolls, falsely labeling thousands of them as “non-citizens.” This fight is still playing out in federal courts, but there’s no mention of this in the report.

There’s nothing on the problem of voters being challenged, unbeknownst to them, by groups like True the Vote, also leading to confusion and eligible voters denied their rights.

While the report talks about how to improve voter registration file processing and management, it says nothing about the law it passed that severely limits the time third-party voter registration organizations, like the NAACP, have to collect and turn over files to the county. There is existing litigation to reverse this as well, (it was temporarily blocked last year) but Detzner didn’t bother mentioning it.

Despite the call from advocates around the state for a more modernized voter registration system, the report says little about it. The best it can offer is guidelines on how elections supervisors can better manage registration records.

There is plenty of blame in this report on county supervisors of elections, though there were plenty of problems that were clearly of the state’s making. For example, Detzner’s report says that

supervisors of elections have a responsibility to make the proper preparations for an election and their county commissions have the responsibility to provide the appropriate support to meet these needs…. However, some counties failed to prepare effectively and it reflected poorly on the entire state.

Election supervisors probably could have better prepared if they weren’t sent on witch-hunts by the state to purge voters. Meanwhile, whose to blame for the disproportional burden placed on black and Latino voters for long-line waits. Or the 201,000 Floridians who were discouraged away from voting due to the election mishaps.

It should also be noted that while Florida was far from the only state with these problems, they were emblematic of the finding by Massachusetts Institute of Technology that black and Latino voters waited twice as long to vote than whites across the nation.

Detzner wrote in the report: “I can confidently say Florida conducted a fair election in 2012.” Given his weak analysis, it’s apparent that there must be some blindspots at the state-level, particularly where race is concerned.

Read more about what’s next for the voting rights movement in Florida and beyond here.

Despite the clear fail of voter suppression efforts and the strong resolve of voters last year, right-wing forces are still determined to make voting harder. And despite the clear need for modernizing voter registration, conservative election officials are zeroing in on the registration process as a place to achieve their goals, by requiring proof of citizenship and adding unnecessary criteria for who can be registered and when.

At a recent Heritage Foundation panel, some of the biggest opponents of voting rights lined up to decry modernizing voter registration, calling it a “threat.” The moderator, the voter fraud wolf-crier Hans von Spakovsky, said solutions like universal voter registration and Election Day registration invite fraud and allow “non-citizens” to vote. There remains no evidence of ineligible voters throwing an election, or people from another country defrauding an outcome, or for that matter of meaningful incidents of any of the fraud these folks continue to insist exists. Still, at the panel Kansas Secretary of State Kris Kobach proclaimed “aliens” are stealing our votes and invading our voter rolls.

The practice of restricting voter registration and making Americans prove their citizenship to vote has a long history in America, which sadly bears some review. White, wealthy elites have tried to keep the franchise from people of color, the poor and women since the start of this nation, often using registration as a barrier. It was during the civil rights movement, though, that these forces showed the nation that they were willing to try to beat the living black off people to stop them from registering.

Reading Gary May’s forthcoming Bending Toward Justice, I learned about the “Freedom Day” effort launched on October 7, 1963, by civil rights hero Jim Forman in Selma, Ala. Forman and his fellow SNCC soldiers wanted to capitalize on the momentum surge from the March on Washington, and the many civil and voting rights demonstrations before it. He teamed with comedian Dick Gregory, James Baldwin, Amelia Boynton and a host of civil rights soldiers to march to Selma’s courthouse and register African-Americans to vote.

But not before facing off with Selma Sheriff James Clark, whose sole reputation was to bust the heads of black voters. The night before Freedom Day, Forman hyped black Selmans up with a rousing speech where he told them to “call … people and tell them to come down to the courthouse tomorrow, that it’s freedom day.”

Anticipating long lines, he told them, “You take a baloney [sic] sandwich and a glass of cool water and go down there and stay all day.”

On Freedom Day, hundreds of black Selmans were lined up at the courthouse to register. Only a select few were allowed in, and to register they had to pass oral and written tests to prove they were worthy to vote. May writes that, “[Sheriff] Clark’s men took pictures of those inside [the courthouse], another deterrent to registering.”

Clark’s men: fifty state troopers and forty others that May describes simply as a “posse,” all armed with guns, cattle prods and night sticks.

Two of Forman’s aides, Carver Neblett and Avery Williams, tried to bring food to the people who had been waiting in line for hours. They were met by state troopers’ billy clubs. Neblett and Williams were carted off to jail, where the beatings continued. Would-be voters who had been standing in line all day to register were told to go home. Later, John Lewis would declare this “the turning point in the right to vote.”

It could be that we don’t even need voter registration, especially since it seems to have a history rooted in keeping many from voting. North Dakota has no voter registration system. People show up on Election Day, show a form of ID—from a wide range of acceptable forms, not a narrow photo ID rule—and then sign their names into an electronic pollbook. That’s it. The record of voters are entered into a centralized database.

I talked with North Dakota Secretary of State Al Jaeger about how he runs these registration-less elections and he was proud that they’d been doing it this way since the 1950s “without incident.”

In his state, “There’s no reason to have voter registration drives and from what I can tell with all the voter registration guidelines out there and voter lists, there seems to be a lot of problems and challenges.”

He doesn’t know if his system is perfect, but he knows “that in North Dakota dead people don’t vote.”

Yet US history shows plenty of black people dead from trying to vote. The nation probably needs a voter registration system, or at least a national database that stores and tracks voters’ information so that it automatically updates whenever a person moves, gets married or dies. But demanding people to prove their citizenship or their worthiness to vote is a retreat to the past, a past that bends away from justice.

Voters stand in line in Florida in 2012. Virginia was finally called for Barack Obama hours after polls closed because voters in Obama-leaning counties had to wait in long lines to cast their ballot. (AP Photo/Alan Diaz.)

Republicans have been busy since Election Day—working to make sure voters of color don’t have another opportunity to impact state politics as dramatically as they have in recent elections. But yesterday, one of the more notorious efforts was finally blocked, as a bill died that would have fudged the state’s electoral college math to water down the influence of black voters.

State Senator Charles “Bill” Carrico tried to push through a bill that would have divvied up Virginia’s 13 electoral college votes according to congressional districts won, rather than popular votes, with two at-large votes awarded to the candidate who wins the most districts. If this had been law during the November 2012 election, Romney would have won nine electoral votes and Obama four, even though Romney lost the state by 150,000 votes.

Sensing his bill’s death, Carrico attempted a last-minute adjustment so that electoral votes would be split according to the percentage of popular votes won across the state. It still failed, with many of his own Republican colleagues rejecting it.

The whole move was a pure case of election losers deciding they were going to hate the player and the game. But instead of being real game-changers, by coming up with effective policies that would win more voters, they went for an Ocean’s 11 to rob the game. But Carrico claimed afterward that his intentions were only pure. He told reporters, “I did this because so many people in my district feel the current system—winner-take-all—is not fair, and they want to see some fairness to the process.”

So, let’s talk about fairness in the process. Like the fact that those 150,000 votes that Obama won the state by mostly came from voters in Fairfax and Prince William County, many of whom waited up to five hours in line in frigid temperatures to vote. The last recorded vote in Prince William was at 10:46 p.m., almost four hours after polling was supposed to close. Voters in Fairfax reported not getting home until midnight. As of 9 p.m. on Election Day, Romney was leading in Virginia, but that was because Prince William and Fairfax hadn’t reported yet—because their voters were still waiting to vote out in the cold.

Virginia wasn’t called for Obama until after midnight, when those two counties could finally be tallied. Obama’s 150,000-vote win was owed almost purely to those voters, many of whom were African Americans and Latino Americans.

But if Carrico’s electoral vote-by-district legislation had been law last year, then those voters would have stood out in the cold all that time for nothing. Both of those counties are in District 11, which would have been one of only four districts Obama won. The only other places reporting extremely long lines were Virginia Beach, Hampton, Richmond and Roanoke. With the exception of Roanoke, all the other cities are in the few districts Obama would have won, which means they also would have spent all that time shivering in line for nothing.

But forget hypotheticals, let’s look at what actually happened: Many of the people who suffered long waits last November were elderly and disabled. An attorney for the Advancement Project reported a pregnant woman waiting in line who had to go home for warmer clothes to withstand freezing rain. She told the attorney, “I’m pregnant and scared to drink the water here, but I’m waiting to vote.” Another African-American working mother had to return to her polling site four times before she could actually vote due to long lines and her work schedule.

Here’s more on fairness: An Asian-American woman testified earlier this month before Congress members in Woodbridge, Va. that she and her husband waited for three-and-a-half hours in line, and that when she finally got to the poll books she was hassled for ID by a misinformed pollworker and insulted over her name. Her husband, who is white, was able to vote without the same ID hassle.

More fairness: A barrage of robo-calls reached Virginia voters in October telling them that they could vote by phone, or they could vote days before Election Day to avoid long lines. It was insult added to injury, because Virginia is one of the few states that doesn’t even offer early voting, though there’s now ample evidence nationwide that early voting prevents absurdly long lines on Election Day. And there was the extra insult that some of the people waiting in lines on Election Day were harassed by pollwatchers unlawfully asking for various forms of ID. Or how about Virginians being turned away or forced to vote provisional because of voter registration problems.

We can also talk about the fairness of Virginia’s election code, which allows for only one voting machine per 750 voters—in D.C. it’s one per 250 voters, Maryland one for every 200—and bars any post-election auditing, despite almost every election expert saying audits are necessary to ensure accuracy.

And let no one forget, the “fairness” of over 350,000 Virginians who weren’t able to vote at all because of a felony conviction, even after paying their debt to society—many of them labeled felons for nothing more than bouncing a check.

There’s a lot that state senators like Carrico could do if they really want to address fairness. They could aggressively push through legislation that would provide more polling site resources and finally institute early voting to alleviate the long lines. They could pass a bill that would automatically restore voting rights to people with non-violent felonies, as their governor and attorney general have asked them to do.

But instead, they rushed, first, to try to push through shady legislation that would have unlawfully redrawn district lines, packing black voters further into a handful of districts. And then they tried to push through Carrico’s legislation, which would have cancelled out hundreds of thousands of votes from mostly working class voters and people of color by rejiggering the electoral college system.

As Keesha Gaskins, redistricting and voting rights expert for Brennan Center for Justice explained to me, under an electoral vote-by-district scheme, black voters, for instance, would be drowned out in all but two of the 11 districts. Under the current popular vote, winner-takes-all construct, black voters can’t guarantee the state selecting a candidate of their choice, but they can at least influence the choice, because it would be tough for a candidate to win without their 20 percent.

Meanwhile, under the state GOP’s fraudulent redistricting attempt—and really how is this not voter fraud?—black voters would have been swiped from Republican-leaning districts and packed into a “minority” district. Republicans actually argued that these schemes were valid under the Voting Rights Act. Not likely. If this is what Virginia Republicans are doing in the name of “fairness,” then I’d be scared to drink the water there too.

The Navajo Election Administration in the Chinle Agency. (Aura Bogado)

Leonard Gorman is a man of maps. He heads the Navajo Nation’s Human Rights Commission, which among other responsibilities, is charged with protecting and promoting Navajo voters’ rights to choose candidates who will reasonably represent their interests. He and his team all work out of their trailer office in Window Rick, Arizona—the Navajo Nation’s capitol—where they chart data that they’ve collected on the potential impacts of redistricting on the Navajo Nation.

The first map Gorman’s team submitted to the Arizona Redistricting Commission resembled the letter J, encompassing the edge of Arizona’s eastern border and curving up towards the west. Although that map included large portions of Arizona’s Native population, the Navajo Nation later opted out of it because Arizona’s hardline anti-immigrants liked it too much. It included large southern border areas, where white conservative ranchers are more likely to vote Republican and would have infringed on Arizona’s growing Latino districts. “We immediately learned that the J map was playing into the extreme right position,” explains Gorman.

So the Human Rights Commission went back to the drawing board and submitted what Gorman calls the “non-J map,” which the Commission eventually adopted for Arizona’s 1st Congressional District. It was that map that helped Ann Kirkpatrick, an Arizona Democrat running for the House, win back her seat in November.

As election results first poured in, it seemed as if Kirkpatrick was doomed to lose once more. Yet at about 1:30 in the morning, when counties with high numbers of Native voters started coming in, that all changed. In Apache County alone, which includes a large portion of the Navajo Nation, Kirkpatrick garnered nearly 70 percent of the vote. “The election isn’t over until the last precinct comes in from the reservation,” proclaims Ron Lee, Kirkpatrick’s district director, who headed the tribal outreach effort during the campaign. Kirkpatrick first held the seat it in 2009, but lost it in 2011 to Republican Paul Gossar—a Tea Party darling whose endorsements included Sarah Palin. Determined to make it back to the House, Kirkpatrick spent a lot of time after her defeat on the Navajo Nation. Arizona’s independent voters make up a third of the state’s electorate. But instead of investing crucial time with those independent white voters, Kirkpatrick spent the day before the election on the White Mount Apache reservation. On Election Day, she somehow managed to visit Tuba City, Window Rock, Chinle and Kayanta—which are all population centers, but hours away from each other on the vast Navajo Nation.

Lee’s not just boasting. Kirkpatrick’s victory is a reflection of how crucial Native voters are to Democrats’ success here and in several Western states. Four of the tightest Senate races took place in states with some of the largest percentages of Native Americans: Arizona, New Mexico, North Dakota and Montana. The Native vote in three of those states helped Democrats win key victories and maintain control of the Senate.

Yet the 2012 election in these states also revealed just how hard Native communities still must work to participate in democracy—and just how little they are getting in return for their organizing efforts. Natives around the country still face incredible barriers when trying to vote. Despite the Fourteenth Amendment, it wasn’t until the 1924 Snyder Act that all Natives were granted US citizenship, which included the right to vote. It took some states up to fifty years to recognize that right and the ongoing struggle to cast ballots today often remains entrenched in the long history of disenfranchisement.

Don’t Vote Here

The problems in 2012 were legion, and they began before voters even made it to the polls. In New Mexico, where the Native population grew more than 11 percent in the last decade, the state ran out of voter registration forms in six counties—half of them in counties with high Native populations. In Arizona, as I’ve previously reported, just setting up polling places involves a fight. Many Navajo, or Diné, must vote in one spot for federal elections and in another for tribal elections. The distances between them, in addition to the long lines reported at several precincts, can easily take several hours to traverse. Many voters didn’t have that kind of time and were essentially forced to choose in which election they would participate.

Elsewhere, Native voters faced Bull Conner–style intimidation. The Indian Legal Clinic, based at ASU’s law school in Phoenix, headed up Native Vote Election Protection in Arizona. Law school students like Ed Hermes scattered throughout Arizona to monitor precincts with heavy Native populations. In the course of six hours, five Maricopa County Sheriff’s vehicles were observed patrolling outside the Guadalupe polling location, which mostly serves Pasqua Yaqui voters. In Pima County, border patrol agents were stopping every vehicle leaving the Tohono O’odham Nation. The agents, accompanied by German Shepherds, were asking drivers about their citizenship. In Yavapai County, a Republican poll watcher was reprimanded for speaking to voters directly.

Once Native voters made it to the polls, Hermes says that his group recorded that many were given provisional ballots, even when it wasn’t warranted. Equally troubling are the many reports of no provisional ballot being issued, despite a voter’s conviction that they were registered. Under the Help America Vote Act, if a voters thinks they should be allowed to vote, they must be handed a provisional ballot—even if they’re not on the rolls.

Hermes, the law student, remembers one man, a member of the White Mountain Apache Tribe, who left his polling location without having cast a ballot because his name wasn’t on the rolls. Hermes encouraged him to return and ask for a provisional ballot—but when he did so, poll workers refused to issue one. The voter asked Hermes to join him in his third attempt to obtain a ballot; when Hermes did so, he was kicked out while trying to explain that the voter did have a federal right to vote provisional. Hermes waited outside and the voter finally emerged, but was still unable to obtain a provisional ballot. Feeling defeated by the three-time rejection, the voter left in frustration.

On top of all of these barriers, like many others in Arizona, Native voters also faced confusion over the state’s voter ID law. Despite the fact the law was passed in 2004, it continues to cause disenfranchisement nearly a decade later. “This is still a big problem in Indian Country,” says Hermes, referring to the voter ID rules. “And it seems it will continue to be so unless we can make some changes.”

By the end of Election Day, the Native Vote Election Protection volunteers in Arizona were able to help at least thirty-seven people who were originally told they couldn’t cast a ballot for a variety of reasons. But it’s impossible to tell how many Native voters were ultimately disenfranchised—not just in Arizona, but also around the country.

It wasn’t all that long ago for Natives that their mothers and fathers fought for the right to vote. Knowing that representatives at every level of government stand to make policy decisions that will result in big impacts for their everyday lives makes obstructions to the ballot box difficult to swallow. Hermes says that he and his team witnessed people willing to get in line again and again just to vote, but that the perseverance—coupled with federal protection, redistricting efforts and election protection work—doesn’t always ensure the franchise. “It makes it even sadder when folks don’t get to vote,” he adds.

Montana Madness

The uphill fight for democracy in Native communities was perhaps most starkly illustrated in Montana, where Democratic Senator Jon Tester held on to his seat thanks in large part to the Native vote. There, more than a dozen Natives filed suit when the state offered early voting in predominately white areas beginning October 10, but neglected to set up early voting on the Northern Cheyenne, Crow and Fort Belknap reservations. The Blackfeet Nation also initially lacked what’s called a satellite county office, which services early voters and late registrants, but the state’s Attorney General issued an advisory to create an office there. Other Natives saw the Blackfeet success as a sign that satellite offices would be established on their reservations as well. But it was not.

The Northern Cheyenne Nation is split between Rosebud and Meade counties. Rosebud’s County Clerk and Recorder, Geraldine Custer, refused the request to accommodate Northern Cheyenne voters. According to court documents, Custer—who is married to a descendent of Colonel George Custer—dismissed the idea of setting up a satellite office because she felt there wouldn’t be enough staff available, adding that it would take too long to set up Internet. She proposed that Natives could simply pack buses full of voters to the town of Forsyth. What Custer didn’t mention is that Forsyth is more than a 100-mile round trip for most people on the Northern Cheyenne Nation to a town that is 95 percent white and sometimes culturally hostile to Natives. In the days that followed, Custer would eventually say that she was concerned about voting fraud, adding that she didn’t care about race and that it didn’t matter if the request was made by “Negroes, Chinese, Asians, whatever.” The Rosebud County Commission backed Custer and denied the request for an early voting satellite office.

Not to be deterred, sixteen Natives filed suit in a Billings, Montana, US District Court against Democratic Secretary of State Linda McCulloch and several county officials, including Custer. As if it wasn’t ironic enough to have George Custer’s descendant kin administrating election rules for the Northern Cheyenne, Judge Richard F. Cebull heard the case. In March 2012, Cebull drew national attention when he sent an e-mail from his chambers that joked about President Obama’s mother having sex with a dog. “I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine,” Cebull wrote as he forwarded one of the many racist gutter jokes about Obama’s lineage that have swirled in rightwing circles since 2008.

The Crow Nation’s legislature called for Cebull’s removal as judge, arguing that his email illustrated his inability to maintain objectivity over legal questions involving people of color and Native Americans. But Cebull remained on the case and he refused the plaintiffs’ request for satellite offices on their reservations. That decision was issued just one week before Election Day, and the Crow, Northern Cheyenne and Fort Belknap reservations did without satellite offices in this election. It’s unknown if or when early voting will be available for future elections.

Despite all of this, Natives in Montana did participate on Election Day. Senator Tester credited Montana’s Native vote with initially getting him the seat in 2006 by a razor-thin margin and he counted on that vote to keep his seat in 2012. Along with decisive wins for Senator Martin Heinrich from New Mexico and Senator Heidi Heitkamp from North Dakota, whose victory was decided by less than one percent of the vote, Democrats are hanging on to the Senate in no small part thanks to the power of the Native Vote. Ensuring the franchise for Native voters might keep them there.

Which begs a whole different set of questions about what Native voters are getting for all of their uphill work in these Western states. It’s a question some are already asking of the newly minted Arizona Representative Kirkpatrick.

Welcome in the Party?

Kirkpatrick’s victory seems to have relied more on a familiar name with a D next to it than on solid policy positions. Water, coal, the use of land and the environment are central issues in Arizona—and the way those issues are legislated, supported or ignored in Washington largely dictates reality for the Diné.

The Arizona Snowbowl opened its slopes to skiers recently, despite years of objection from Native communities and environmental activists. Set in the San Francisco Peaks just a few miles north of Flagstaff, the Snowbowl dumps flakes—inadvertently yellow in color—created by treated sewage water in an area that is sacrosanct to thirteen tribes and nations. But Washington has done nothing to intervene. Unrelated to the slopes, a wildly unpopular bill introduced by Senators Jon Kyl and John McCain that accompanies the similarly unpopular Navajo-Hopi Little Colorado Water Rights Settlement Act was introduced in Congress. Although it didn’t move in the lame duck session, it reminds Natives that Capitol Hill still has a big say in Indian Country.

Yet when I spoke with Kirkpatrick’s district director Lee, who is Diné and whose parents still live on the reservation, he hardly commented on either the Snowbowl or the legislation. While avoiding the term “tribal sovereignty,” Lee twice answered that these were issues that needed to be “worked out by tribal communities”—despite the fact that Washington has a strong and definite say in how these matters are resolved. As our conversation moved to energy and coal, Lee was surprised to learn that Kirkpatrick had accepted campaign donations from the Salt River Project, an ALEC corporate board member that owns the coal-powered Navajo Generating Station. When we talked about the effects of coal on the Navajo Nation, Lee mentioned that Kirkpatrick believes in the need to balance creating and protecting jobs based on clean energy while maintaining what he called “the pristine environment.”

That balance was violated, some Natives say, when Kirkpatrick went back on a 2008 campaign promise to protect certain portions of land. In 2010, Kirkpatrick proposed a controversial bill to allow Resolution Copper, a multinational mining company, access to Federal Park land—including the Oak Flat area, which is sacred to the San Carlos Apache people. Although it had Republican support, Kirkpatrick’s legislation failed to get through the House, but illustrated that she was willing to back big business, even if it came at a deep cost to Natives.

Andrew Curley is a PhD candidate at Cornell University’s Department of Developmental Sociology who focuses on coal mining within the reservation and serves on the Commission on Navajo Government Development. He says Arizona’s Native voters, who tend to vote Democrat regardless of who’s running, are caught in a Catch-22. “You can either vote Republican and against your own interests, or you can vote Democrat and get someone in office who will ignore you,” says Curley.

His father, Lorenzo Curley, is a Navajo Nation Council Delegate who, along with several others, made the unusual decision to endorse Republican candidate Jonathan Paton against Kirkpatrick. The endorsement didn’t seem to affect the Native vote, but it did illustrate the frustration that many Diné feel about a candidate who doesn’t go to bat for their interests in Washington.

Wenona Benally also emerged to challenge Kirkpatrick in the Democratic primary. Benally, who is Diné and, if elected, would have been the first Native American woman in Congress, focused her campaign around the interest of grassroots Natives—running her campaign on clear support for tribal sovereignty, environmental protection and clean energy. Benally has also been a big proponent of immigrant rights in the border state. Kirkpatrick, meanwhile, skipped out on DREAM Act 2010 vote in Washington and called the Department of Justice’s lawsuit over SB1070 an intrusive “sideshow.” But Native candidates have thus far had a nearly impossible time making headway in the Democratic Party, which threw its support behind Kirkpatrick.

Andrew Curley remains hopeful that things will change. Although he half-heartedly voted for Kirkpatrick on Election Day, he notes that Arizona is shifting. “What was once a solid red state is now a pink state,” he says. “With that, the popular political consciousness of the area is changing and centrist Democrats will be challenged by independent minded Democrats.”

As the Idle No More movement spreads beyond Canada and into Native communities across the United States, Curley is right to think that Native voices are contributing to a shift by opening up a conversation about what tribal sovereignty means. The question remains whether those same voices will be allowed to cast ballots in subsequent elections—and whether issues central to their communities will be considered so by future political representatives.

For more on equal opportunity for Native Americans, check out TheNation.com's Extra Credit blog.

Yesterday, Virginia Governor Bob McDonnell announced in his 2013 State of the Commonwealth speech that he supports Republican-sponsored bills to automatically restore civil rights—including voting rights—for nonviolent felony offenders. Virginia is one of four states that permanently bar felony offenders from voting or running for office even after they’ve already served time in prison and any probation/parole sentence. The governor alone can restore those rights and only after a cumbersome process that includes a two-year wait for nonviolent offenders or a five-year wait for violent offenders. There are roughly 350,000 Virginians, most of then African-Americans, disenfranchised because of this law.

McDonnell is now saying the wait is over for nonviolent offenders—or at least that it should be. Automatic rights restoration will only happen with an amendment to the state’s constitution, which can be done only by the state legislature. According to The Washington Post, Republicans in that legislature gave McDonnell’s appeal a lukewarm response, and those who head the committees responsible for creating such legislation oppose automatic rights restoration.

“While we have significantly improved and fast-tracked the restoration of civil rights process, it’s still an executive process. As a nation that believes in redemption and second chances, we must provide a clear path for willing individuals to be productive members of society once they have served their sentences and paid their fines and restitution. It is time for Virginia to join most of the other states and make the restoration of civil rights an automatic process for non-violent offenders.”

“The governor has embraced the principle of redemption and the legislature should follow his lead,” stated Judith Browne Dianis, codirector of Advancement Project. “Evidence shows that voting reduces the likelihood of recidivism, helping to strengthen our families and communities. These are citizens often trying to rebuild their lives. They live and work in our neighborhoods. They pay taxes. They should not be denied the right to raise their voice in the ballot box.”

“Governor McDonnell is again leading the way for states still practicing felony disenfranchisement to eradicate themselves from antiquated and racially biased disenfranchisement laws,” said Benjamin Todd Jealous, President and CEO of the NAACP. “As we continue to fight these battles on the ground, we hope that legislatures across the United States and especially in Kentucky, Iowa, Florida and Virginia make automatic restoration of rights a permanent fix in their state constitutions.”

According to the NAACP, McDonnell has restored the voting rights of 4,423 people to date, which is officially more than the number of people whose rights were restored under the previous governor Timothy Kaine, who currently represents Virginia in the US Senate. McDonnell is in the last year of his term as governor of Virginia. Governors are limited to one term in the state.

Yesterday was a day of reckoning, or the start of a reckoning in the US Senate for the many election season mishaps of 2012. Elections administrators gathered for a hearing on “The State of the Right to Vote After the 2012 Election” before the Senate Committee on the Judiciary to unpack some of the shenanigans from last month. Testimony was divided along partisan lines, with Republicans defending “election integrity” measures such as photo voter ID laws, early-voting hours reductions, voter registration restrictions and mandating proof of citizenship for new voters. Meanwhile, Democrats castigated such measures as frivolous and built upon false pretenses of voter fraud.

Committee chairman Senator Patrick Leahy opened the hearing testifying that since earlier in the year he was worried that some states were erecting barriers to voting and that November’s election confirmed “that we were right to be concerned,” citing the long lines and mass voter confusion reported around the nation. Ranking member of the committee Senator Chuck Grassley went the opposite way, saying that people have been tossing around terms like “voter suppression” and “disenfranchisement” too “cavalierly” and that voter fraud—the pretense for the wave of new voter laws—is “a fact of life and it will get worse.”

It should be noted that the term “disenfranchisement” has been used not just by voting rights advocates but also by a state judge. In Pennsylvania, Judge Robert Simpson, who has no liberal reputation, found that his state’s photo voter ID law did qualify as disenfranchisement if just one voter would be denied the franchise because they didn’t have proper ID. In terms of voter suppression, it’s been quite noted among academics that photo voter ID laws and reduced early voting hours have a suppressive effect mainly on Democrat voters, and that they also help swing elections to Republicans. But speaking of cavalier use of the term, Senator Grassley needed only to hear from his fellow Republican Matt Schultz, Iowa’s secretary of state, one of five witnesses at the hearing, who testified, “Some believe their votes do not matter and that belief is a true cause of voter suppression across this country.”

There’s some truth to that, but the way Schultz states it absolves him and his peers of any agency in the matter. People don’t just wake up disillusioned with voting. There are policies that restrict people’s access to the vote that makes people feel like their vote doesn’t matter. Election officials like Schultz, the ultimate supervisor of all election activities in Iowa, are responsible for those policies.

Schultz testified that people who complain of voter suppression “offer no evidence to support their claims,” and that voter ID laws “have actually led to an increase in voter participation.” His proof of this increase, according to the footnotes of his written statement, is an article from the Atlanta Journal-Constitution, which explored the voter ID situation in Georgia, not Iowa. In fact, Iowa doesn’t even have a voter ID law, but Schultz seemed to be hedging at what he hoped for his state’s future.

There is no correlation between states with voter ID laws and increases in voter turnout, a myth often peddled by Heritage Foundation blogger Hans von Spakovsky. Georgia’s voter ID law is broad and expansive enough (the state mails a free voter ID to every voter) that there are few hoops to jump through, and has no resemblance to much more restrictive voter ID laws like the one courts blocked in Texas.

It’s also disingenuous to offer up that voters turned out despite onerous laws as proof of a net-positive impact. If a law was passed saying voters had to walk barefoot on hot desert sands to vote, and millions turned out anyway, that wouldn’t erase the fact that the law is painfully punitive. And yet a state senator from Florida once suggested exactly that for voters.

Florida had a starring role in the hearing, given its infamy in election practices dating back to at least the 2000 Bush-Gore election. This year, the nation watched on TV as the voters in Miami who waited as long as eight hours in line to vote, while reports of robo-calls and voter misinformation, and misdirection, sprung from across the Sunshine State (Florida was far from alone on those fronts. Virginia, Pennsylvania and Ohio also fielded such reports also). Testifying from Florida was Senator Bill Nelson and former governor Charlie Crist.

Senator Nelson came armed with a deposition from a GOP consultant named “Bucky” Mitchell who authored drafts of HB 1355, the legislation responsible for reduced early voting and curtailed voter registration activity that many election officials fault for the long lines and confusion. In that deposition, Mitchell confessed that a lot of the voting impediments in HB 1355 were unnecessary, but the Republican party leaders he was consulting for insisted putting them in there.

“Those who asked for the voting restrictions in Florida—including reduced early voting,” said Nelson, “held jobs with the sole aim of electing Republican lawmakers.”

Nelson also linked the activities to the American Legislative Exchange Council, the Koch brothers–funded organization that circulated model voter ID bills among the states. ALEC, which is normally not mentioned in government circles given their ties to corporations, was mentioned four different times in the hearing, including from Charlie Crist. As governor from 2007 to 2011, Crist put in place a number of reforms that helped expand the vote for the general electorate and for those disqualified to vote due to felonies. His successor Rick Scott rolled back most of those reforms with the help of the Tea Party.

“Florida, which four years earlier was a model for efficiency,” said Crist, “became once again a late-night-TV joke.”

Florida took weeks to certify many of its elections—the congressional race involving Representative Allen West was resolved weeks after Election Day, and in some minds, it’s still not resolved. It wasn’t the only state with extremely late returns. Arizona suffered the same, and its Secretary of State Ken Bennett testified that the hold up was due to ballots compromised because a “voter spilled something on” it or they used “crayon, glitter ink or other methods” to fill out their ballot.

Our Voting Rights Watch comrade Aura Bogado has been reporting out of Arizona recently, and she has a different explanation. Says Bogado, “Arizona hasn’t helped improve the system of voting—it’s made it more difficult to vote through the implementation of voter ID, proof of citizenship requirements, lack of language assistance, and poorly trained poll workers who denied voters their right to cast a ballot.”

—Brentin Mock

A new report reveals that 93 million Americans did not vote in the previous election. Aura Bogado breaks down the numbers.

Forty percent of voters didn’t cast their ballots on Election Day—and a new report explains some of the reasons why. The Medill School of Journalism conducted an online survey of voters and nonvoters that resulted in a study named “Nonvoters in America 2012.” It divides nonvoters in six distinct categories, and recommends ways to encourage voters to participate in future elections.

Some 126 million people cast ballots last month, but 93 million people did not. According to the survey, when added up together, nonvoters tended to be young, less educated and poor. But that can obscure the different categories of nonvoters that can be broken up into distinct groups.

Take the group called the Pessimists. They’re less educated, less-income-earning middle-aged and retired men who lean conservative, like small government, and dislike President Obama. They’re named because of their pessimistic outlook on the future of the economy. At 27 percent, they made up the single biggest group of nonvoters.

The Active Faithfuls, meanwhile, were well-educated, middle-class Southern black and white churchgoers who identify as independents and moderates. They made up 11 percent of nonvoters, largely because they didn’t support either candidates for religious reasons.

And then, there were Doers. They’re well-educated, liberal-leaning Obama supporters. These young Latino men identified a deep political engagement, but didn’t vote last month because logistical reasons kept them from doing so.

Those surveyed cited a variety of reasons for not voting. Many simply didn’t have time to vote, were sick or dealing with an emergency. Yet nearly a third of nonvoters were not registered, or had trouble attempting to do so—making them ineligible on Election Day.

Voters and nonvoters alike want cleaner government, additional candidates and the ability to vote online. Twelve percent of voters can't think of what it is that would encourage them to vote, and 10 percent say nothing can be done to get them to cast a ballot.

While the report doesn’t fully address the issue of former felons who have been disenfranchised, it indicates that 3 percent of nonvoters were either serving time or had a record that prevented them from voting. The survey was conducted online, so it may be likely that very poor people, as well as those who live in rural areas or in Indian country, may not have been eligible to participate in the survey because of the digital divide, and are thus not being counted.

In the movie "Lincoln", there's a scene where "Radical" Republicans are debating Democrats in congressional chambers over whether to abolish slavery with a new constitutional amendment. A speaker from the Democratic Party, arguing against abolition, delivers a rousing speech about how Negroes shouldn't be emancipated because of the slippery slope of freedom. Once Negroes have freedom, he argued, then they'll want the right to vote--the prospect of which caused a riotous but bipartisan chorus of disagreement from most of Congress. The bellowing response was only outdone by an even more clamorous round of disapproving shouts when the speaker mentioned giving women the franchise.

Not far from the D.C. setting of that congressional debate was the Confederate Army and government, set up in Richmond, Va., where there was no disagreement about whether black people should have freedom or the right to vote. They, of course, ultimately lost the war and their cause, and were eventually allowed into what we now call the United States. Re-entry into society for Virginia and the Southern states meant adopting new constitutions ridden of any slavery talk, but they were clear back then about not giving black people any political power. And here's where it gets hairy.

As Virginia tried to patch together new versions of its state constitution from 1867 into the new century, it undoubtedly added amendments that robbed African Americans of their voting rights. One notable amendment, from 1876, added petty larceny to the list of felony offenses that would prevent someone from voting, because it was a crime most attributed to black people, according to scholars. It was Virginia's way of disenfranchising black people without stating it explicitly in the law.

More evidence: The 1901 Virginia Constitutional Convention featured a delegate Walter Watson who stated that the "great underlying principle of this Convention movement , the one object and cause which assembled this body, was the elimination of the negro from the politics of the state." And that was not, by far, an isolated or anomalous sentiment at the Convention.

Today, Virginia's felony disenfranchisement law--formed, in part, during that notorious time period--is being challenged by Sa'ad El-Amin, a former Richmond city council member, before he was convicted of felony tax evasion. As I reported in October, El-Amin is suing the state in U.S. District Court, not to have his own rights restored, but to have the felony disenfranchisement law struck as unconstitutional for violating equal protection, due process and cruel and unusual punishment clauses.

Virginia tried to have the case dismissed, perhaps too eagerly since it mucked up much of its clearly racist past in the filing. But a federal judge refused the state's wishes, and in fact summoned a legal analysis from William and Mary Law School to see just how strong the case is.

That analysis was filed this week. The conclusion: El-Amin doesn't have a strong case in terms of equal protection on the basis of race, but they found a quite formidable case to be made on denial of due process. As the law currently stands, people with felony convictions are permanently barred from voting unless they apply to the governor for restoration. But if there is any criteria the governor uses to determine whose rights he'll restore or not, no one other than him knows it. According to the amicus brief filed by William and Mary, that makes the law a violation of due process rights.

The brief reads:

"Under Virginia's current procedures, citizens who have completed their sentences are deprived of the right to a fair, objective, and transparent determination on the restoration of their rights. This deprivation cannot be justified based either on the Governor's broad clemency powers or the extent of the state's interest. ...

"[F]elons who have completed their sentences have a liberty interest in knowing what must be done to be deemed fit to exercise the franchise and having that determination made fairly and objectively through a transparent process. In the present case, depriving citizens who have completed their sentences of a fair, objective, and transparent process is a severe deprivation. Although the right to vote is not necessary to live, the interest indirectly implicated is full citizenship and the opportunity to reintegrate into society. ... One can scarcely imagine a more important right."

William and Mary didn't find a good equal protection clause claim based on race, because the state's felon law was passed in 1830, and the petty larceny clause targeted at black felons was stripped out in 1971. But they did spot an equal protection case based on place of felony conviction--an argument that might be helped along by a separate court victory scored by President Obama's campaign in this year's election.

People convicted of felonies in Virginia are banned from voting, but those who live in Virginia and were convicted in other states are not banned. The result is an uneven application of the law, which William and Mary finds unconstitutional. As they wrote in their brief:

"The ability to have rights restored automatically in another state and then transfer that to voter eligibility in Virginia is problematic for equal protection validity. Two citizens who have completed their sentences after having committed the same crime are subject to different standards in re-establishing their right to vote depending on the situs of their convictions. It is difficult to imagine a legitimate rational basis the state could provide to justify this unequal result."

The Obama campaign won in court on this argument in October when it sued Ohio [Secretary of State Jon Husted]() over early voting hours. As we reported, Husted tried to change the laws so that only military members could vote on the weekend before Election Day, but not regular, non-military citizens (which in effect would have wiped out the "Souls to the Polls" campaign that famously draws abnormally high black voter traffic). The Obama campaign sued Husted so that all Ohio citizens could vote early that weekend and a judge ruled in their favor, on equal protection clause grounds, saying that all voters must be treated the same. Ironically, this was the same decision used by a judge in 2000, in the Bush v Gore lawsuit in Florida that effectively ended the vote recounts and awarded Bush the presidency.

Whether this argument is enough to sway the U.S. District Court judge in Virginia remains to be seen. The legal brief was prepared by third-year students at William and Mary Law School neither as a friend to the plaintiff El-Amin nor the defendant, the state of Virginia. It was meant as an objective analysis, as called for by the judge.

Ultimately, a full hearing and ruling that the law is unconstitutional would make it tough for felony disenfranchisement laws to continue in current form in any state. Though to be clear, the William and Mary brief is not arguing that felony disenfranchisement is unconstitutional, only that formerly incarcerated people deserve the right to a hearing to appeal for rights restoration.

If the law is upheld, or the case is dismissed, it just means that civil rights advocates will continue fighting it, perhaps looking for a legislative fix. With over 350,000 Virginians disenfranchised due to felonies, most of them African-Americans, this case is one worth following. These citizens deserve the same opportunity for re-entry into society that the Confederate states were given after losing the Civil War.